Casenote: Warrell v Fair Work Australia [2012] FCA 267

Background
Mr Warrell (‘Applicant’) was a gardener employed by Bacto Laboratories. He was functionally illiterate and brain damaged. After allegedly swearing at the managing director of the employer, he was dismissed from his employment.

Mr Warrell lodged a claim for unfair dismissal. The period in which he had to claim was 14 days pursuant to section 394(2) of the Fair Work Act 2009 (Cth) (‘FW Act’). Mr Warrell prepared a claim document, but sent it to the Fair Work Ombudsman.

Mr Warrell engaged a solicitor, who lodged his claim with the tribunal Fair Work Australia. The claim was lodged outside the 14 day period. The solicitor did not continue representing the applicant, as Mr Warrell could not afford his fees.

Hearing – first instance

On 7 September 2011, a member of FWA, Senior Deputy President Drake, heard Mr Warrell’s application including argument on the extension of time application under section 394(3) of the FW Act.

On 12 September 2011, Drake SDP delivered her Honour’s decision. The Senior Deputy President made two findings:

---

• that she preferred the managing director’s evidence over Mr Warrell’s, and that Mr Warrell’s claim lacked merit;
• further, her Honour declined to enlarge the time for Mr Warrell to claim, and dismissed his application.

Appeal – full bench of the tribunal Fair Work Australia

Mr Warrell sought permission to appeal and his application came before Senior Deputy President O’Callaghan, Deputy President Hamilton and Commissioner Roe.

Mr Warrell secured the services of a barrister. Unfortunately, the member of counsel was not available on the day scheduled for hearing, and wrote a detailed letter to the presiding member, O’Callaghan SDP, outlining the grounds for an adjournment.

The barrister’s letter contained some unusual observations, including:
a. that Mr Warrell would be unable to conduct an appeal without assistance;
b. the necessity that Mr Warrell put on fresh evidence at the appeal; and
c. the chances of Mr Warrell securing other representation by the time of hearing would be ‘fairly remote’.

The full bench declined the adjournment, and heard the application for permission to appeal. The full bench recorded Mr Warrell’s statement that he would undertake further efforts to obtain representation. Despite this observation, the application was dismissed. No reference to the barrister’s letter observation that the chance of alternative representation was remote’ was made by the full bench.

Mr Warrell sought review of the full bench’s decision, by writs of mandamus and certiorari. On the hearing, Perram J of the Federal Court of Australia found that:

• the full bench of Fair Work Australia was bound by an obligation to afford natural justice to Mr Warrell: Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; and
• the requirements of natural justice were not uniform, and depend on the nature of the case, and the circumstances of the inquiry undertaken: Russell v Duke of Norfolk [1949] 1 All ER 109.

His Honour found that the full bench’s power to hear Mr Warrell’s application for permission to appeal was conferred by section 604 of the FW Act. His Honour found that the basic requirement of natural justice is that the affected person has been denied a reasonable opportunity to put his or her side of the story.

Perram J found that the denial of representation by a barrister to Mr Warrell was, given his limited circumstances, a denial of natural justice. His Honour found that this error allowed the full bench to fall into jurisdictional error, and his Honour issued a writ of certiorari to quash the full bench’s orders and a writ of mandamus to order Fair Work Australia to deal with Mr Warrell’s claim in accordance with law.

Rationale of the decision

The conclusion that Fair Work Australia, like its predecessor the Australian Industrial Relations Commission, is bound by obligations of natural justice, is far from controversial.

Less certain is the conclusion that an adjournment is capable of jurisdictional error, attracting the remedies afforded by mandamus and certiorari. At their highest, it is my view that they are errors in discretion not affecting jurisdiction.

It is an unusual situation indeed, where the want of representation at hearing could result in a jurisdictional error on the part of the full bench – especially where the single member of the tribunal Fair Work Australia found after a full hearing of the evidence that the application lacked merit. No indication was given by his Honour Perram J that the absence of the barrister before the full bench led to any particular difficulty, such as evidence not being led, or submissions not made. In my opinion, absent some identifiable omission flowing in a causative sense from the lack of representation, no jurisdictional error should be found.